Foster Care and Termination of Parental Rights

It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.

Parents’ rights include: the right to the care, custody and control of their child; the right to discipline the child; and the right to control the religious and moral education of the child. Children are under the charge of their parents and are expected to live with them and obey them. Parents also must support their children. Normally, the state cannot interfere with these rights, so long as the parent fulfills his or her obligations to provide for the child’s care and support.

When parents do not support and care for their children, the state may intervene. The state does this to prevent child abuse and neglect and to prosecute parents who do not provide adequately for their children or who are abusing their children. The state also may interfere under the authority of the juvenile court and temporarily or permanently take away the parents’ rights in order to protect the child from neglect and abuse. This is done to protect what is called the “best interests” of the child, meaning that the court considers everything in the child’s life in order to decide where the child should be placed and what kinds of services the child and family need.

Anyone who believes a child is in danger or needs help may call the juvenile court or the Department of Human Services Child Welfare division (DHS). State laws list certain public officials and private professionals who must report evidence of physical and mental injuries, sexual abuse or severe neglect to the police or to DHS. Anyone who makes a report in good faith and on reasonable grounds is immune from civil and criminal liability, and in most instances the informant’s name will not be released to anyone outside DHS.

The police or DHS investigate reports of abuse and neglect. If the investigation supports the report, DHS can file a petition in the juvenile court. If the child is in danger, the police or DHS may take the child from his or her home immediately. A hearing will be held the next court day before a judge at the juvenile court. At this hearing the judge decides whether the child should be returned home or held in shelter care until a full hearing on the facts can take place. The judge must also decide if reasonable efforts have been made by DHS to prevent removal of the child from the home. The parents have the right to be represented by a lawyer at all court hearings relating to these matters. Depending on the facts, the court may provide a lawyer for a parent who cannot afford one.

If the judge finds there is sufficient reason to believe a child has been abused or neglected or placed at risk of harm, or that the child’s behavior is beyond the parents’ control, the child may be placed in the temporary legal custody of DHS or a third party. The child may be left in the parents’ home with monitoring, or may be removed to foster care. The parents have a right to a trial when DHS seeks ongoing temporary legal custody, which is also known as wardship. If the case proceeds to a trial, it is possible that the identity of the original informant who reported suspected abuse or neglect will be revealed to the parties to the case and to the judge. At a trial, DHS must prove it is more likely than not that the child would be in danger if left in the legal custody of the parents.

If parents lose temporary legal custody of the child, their rights to make decisions regarding discipline, education, medical care and placement are limited. Those responsibilities then typically fall to DHS, the caregiver and the judge, with input from other parties including attorneys for the parents and the child. The judge will order the parents to engage in services to remedy the situation that led to wardship, in order to regain physical and/or legal custody of the child. If the child is in foster care, DHS must try to find relatives who may be able to care for the child. Grandparents or other kin or kith may, in some circumstances, have the right to intervene in these cases, although they do not have the right to an attorney at state expense.

While the child is in foster care, a DHS caseworker will work with the parents until the judge is convinced that it is safe to return the child home, or until one year from removal has passed. At that time, if the child has not already returned home, the judge will conduct a permanency hearing to make a plan for the child, after reviewing the family’s progress. Permanency hearings can be held less than one year from removal at the request of a party or on the judge’s own motion, if the parents are not attempting to work on reunification or are not progressing.

If the judge concludes that reunification cannot occur within a reasonable time after the permanency hearing, he or she may decide that the most appropriate permanent plan for the child should be adoption. In that case, a petition seeking to terminate the parents’ rights to the child will be filed.

A petition may be filed to terminate one or both parent’s rights to the child in the following situations:

The parent or parents are not fit to care for the child because there has been one or more incident(s) of extreme conduct toward their child or any child. Examples of extreme conduct include rape, intentional torture and serious physical injury.

The parent or parents are not fit to care for the child because unsafe conditions at home are not likely to change in the near future, making it impossible for the child to return home. Examples include parents involved in drug abuse, domestic violence, chronic neglect of the child or untreated mental health problems.

The child is abandoned, the parents cannot be found and the parents do not claim the child within three months.

In these situations, the parent has a right to a second trial on the petition to terminate his or her parental rights. At this trial, DHS must prove by clear and convincing evidence (more evidence than is required for wardship) that the parents are unfit and that it is in the child’s best interest that they never regain custody. The trial judge decides whether one or both of the parents’ rights to the child should be terminated. If the court decides to terminate the parents’ rights, the parents may appeal that decision.

Once the parents’ rights are finally terminated, the parents can never get them back. In the eyes of the law, there is no further right for the child to inherit from the parents or vice versa, there is no obligation to support the child, there is no right to control the discipline or education of the child and there is no right to enforce contact with the child. Since the child now has no legal parents, he or she may be adopted by a new parent. It is the decision of the juvenile court whether the child continues to stay in foster care, is placed with a legal guardian or is adopted by a new parent or parents. Since the original parents’ rights have been terminated, those parents have no authority to appear in any further court proceedings, and they lose their right to counsel as well.